Chapters of the School Law of California. II. The School District

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Chapters of the School Law of California
II. The School Distrid.

NATURE of the school district. — The school district, in the
language of the California Supreme Court, is a quasi
municipal corporation, or a corporation of quasi municipal
character. 1 The more common form of expression is to say that
school districts are quasi corporations, 2 and of course of a public
character. The term, whether quasi corporation or quasi municipal
corporation, is intended to distinguish such corporations as school
districts, road districts, 3 townships, 4 irrigation districts, 5 reclama-
tion districts, 6 and counties, 7 on the one hand, from private cor-
porations, and on the other hand from municipal corporations
proper, such as cities and towns.

In an early California case Sawyer, C. J., thus distinguishes
the several leading classes of corporations:

"So, also, there are several classes of corporations, such as
public municipal corporations, the leading object of which is

Estate of Bulmer (1881), 59 Cal. 131; Hughes v. Ewing (1892), 93
Cal. 414, 28 Pac. 1067; Kennedy v. Miller (1893), 97 Cal. 429, 32 Pac.
558; In re Wetmore (1893), 99 Cal. 146, 33 Pac. 769; Board of Educa-
tion v. Board of Trustees (1900), 129 Cal. 599, 62 Pac. 173; Mitchell v.
Board of Education (1902), 137 Cal. 372. 70 Pac. 180; Hancock v. Board
of Education (1903), 140 Cal. 554, 74 Pac. 44; Los Angeles City School
District v. Longden (1905), 148 Cal. 380, 83 Pac. 246; Pass School Dis-
trict v. Hollywood City School District (1909), 156 Cal. 416, 105 Pac. 122.

2 A. H. Andrews Co. v. School District (1910), 95 Ark. 26, 128 S. W.
361; Freeland v. Stillman (1892), 49 Kan. 197, 30 Pac. 235; School Dis-
trict v. Thompson (1861), 5 Minn. 280; Harris v. School District (1853),
28 N. H. 58; State v. Troth (1871), 34 N. J. L. 377; Briegel v. City of
Philadelphia (1890), 135 Pa. St. 451, 19 Atl. 1038; Montpelier Bank v.
School District (1902), 115 Wis. 622, 92 N. W. 439.

3 In County of San Bernardino v. S. P. R. R. Co. (1902), 137 Cal.
659, 70 Pac. 782, it was held that a road district is not a political entity;
that it can neither sue nor be sued; that its affairs are entirely managed
by the county officials; that its taxes are levied, collected, and expended
by the county; and that its affairs are county affairs. It was in these
particulars distinguished from a school district.

* Wilson v. Ulysses Township (1904), 72 Neb. 807, 101 N. W. 986.
» Fallbrook Irr. Dist. v. Abila (1895), 106 Cal. 355, 39 Pac. 794.
« Reclamation Dist. No. 70 v. Sherman (1909), 11 Cal. App. 399, 105
Pac. 277.

T People v. Sacramento County (1873), 45 Cal. 692.

196 CALIFORNIA LAW REVIEW

to promote the public interest; corporations technically
private, but yet of a quasi public character, having in view-
some great public enterprise, in which the public interests
are directly involved to such an extent as to justify conferring
upon them important governmental powers, such as an
exercise of the right of eminent domain. Of this class are
railroad, turnpike, and canal companies; and corporations
strictly private, the direct object of which is to promote
private interests, and in which the public has no concern,
except the indirect benefits resulting from the promotion of
trade, and the development of the general resources of the
country. They derive nothing from the government, except
the right to be a corporation, and to exercise the powers
granted. In all other respects, to the extent of their powers,
they stand upon the footing of natural persons, having such
property as they may legally acquire, and holding and using
it ultimately for the exclusive benefit of the stockholders. In
this last class, the stockholders and those dealing with the
corporation, are the only parties directly and immediately
interested in their acts, so long as the corporation confines
itself within the general scope of its powers. The rights of
the corporation, the corporators, and of strangers dealing
with the corporation, may, in some respects, vary according
to the circumstances surrounding a given transaction." 8

All corporations that are intended as agencies in the adminis-
tration of the state government are public corporations as dis-
tinguished from private corporations. Thus cities, counties, and
school districts are public corporations. 9 So are reclamation dis-
tricts, 10 irrigation districts, 11 and sanitary districts, 12 all public cor-
porations, in the sense of being invested with a certain degree of
corporate power for the performance of their public functions.
But all these corporate bodies are very distinct, from the point of
view of legal rights and liabilities, from municipal corporations,
which are the highest class of public corporations, and are invested
with the largest powers, and subject to the most extensive liability.
The distinction between these classes of public corporations is
thus drawn by Judge Dillon :

"The school district or the road district is usually invested
by general enactments operating throughout the state with a

s Miners' Ditch Co. v. Zellerbach (1869), 37 Cal. 543, 577, 99 Am.
Dec. 300.

» In re Werner (1900), 129 Cal. 567, 62 Pac. 97.

10 Dean v. Davis (1876), 51 Cal. 406.

« Central Irr. Dist. v. De Lappe (1889), 79 Cal. 351, 21 Pac. 825.

12 In re Werner (1900), 129 Cal. 567, 62 Pac. 97.

THE PUBLIC SCHOOL SYSTEM 197

corporate character, the better to perform within and for the
locality its special function, which is indicated by its name.
It is but an instrumentality of the state, and the state incor-
porates it that it may the more effectually discharge its
appointed duty. So with counties. They are involuntary
political or civil divisions of the state, created by general
laws to aid in the administration of government. Their
powers are not uniform in all the states, but these generally
relate to the administration of justice, the support of the poor,
the establishment and repair of highways, — all of which are
matters of state, as distinguished from municipal concern.
They are purely auxiliaries of the state; and to the general
statutes of the state they owe their creation, and the statutes
confer upon them all the powers they possess, prescribe all
the duties they owe, and impose all liabilities to which they
are subject. Considered with respect to the limited number of
their corporate powers, the bodies above named rank low down in
the scale or grade of corporate existence; and hence have
been frequently termed quasi corporations. This designation
distinguishes them on the one hand from private corporations
aggregate, and on the other from municipal corporations
proper, such as cities or towns acting under charters, or
incorporating statutes, and which are invested with more
powers and endowed with special functions relating to the
particular or local interests of the municipality, and to this
end are granted a larger measure of corporate life." 13
The limited nature of a school district may be seen from the
wording of section 1575 of the Political Code: "Every school dis-
trict must be designated by the name and style of ' district

(using the name of the district), of county' (using the

name of the county in which such district is situated) ; and in
that name the trustees may sue and be sued, and hold and convey
property for the use and benefit of such district. A number must
not be used as a part of a designation of any school district."
They are quasi corporations of the most limited powers known to
the law. The trustees have special powers, set out in the
statutes, and cannot exceed the limits. They are regarded as
special agents without general power to represent the district. For
some purposes the county supervisors represent the district, for
others the county superintendent. It is provided that they may
be sued, but that does not enlarge the scope of their powers. They
are unlike municipal corporations, some of whose powers are con-

13 1 Dillon. Mun. Corp., Sth ed., § 37. See also the leading case of
Hamilton County v. Mighels (1857), 7 Oh. St. 109; Skelly v. School Dist.
(1894), 103 Cal. 652, 37 Pac. 643.

i 9 8 CALIFORNIA LAW REVIEW

sidered private, as being for the special advantage of the munici-
pality as distinguished from the general public. They cannot be
sued by implication, without direct authority. In this they are
like the state itself, and like counties, political subdivisions of the
state, which may be sued only with the permission of the state.
Their funds are all devoted by statute to specific purposes. They
are not therefore subject to garnishment in behalf of a creditor. 14
And on the other hand, not being mentioned in section 1058 of the
Code of Civil Procedure, which exempts the state, and counties and
cities from the necessity of giving security in civil actions, school
districts can claim no such exemption. 15

Plenary power of the legislature over school districts. — Subject
to constitutional limitations, the power of the legislature over
school districts is plenary. It may divide, change, or abolish them,
and provide for their government at pleasure. 14 The legislature
has exercised its power and adopted an extensive school law extend-
ing from section 1543 to section 1892 of the Political Code, some of
the sections expressly providing for school districts, and all
assuming their existence. The school district is a corporation
established for educational purposes." It is implied, then, though
nowhere expressly provided, that the school which a school district
maintains shall be within the district. 18 For the purpose of estab-
lishing school districts is that schools may be brought conveniently
near the pupils. This intent would be defeated if the trustees
could maintain schools outside the district. The constitution
declares that "the legislature shall provide for a system of
common schools by which a free school shall be kept up and sup-
ported in each district." 19 Further, the Political Code gives the
trustees power to manage school property within the district, 20 and
requires every new district to open school therein within six
months. 21

A school district may be included within the same territory
as a municipality, but is nevertheless a separate and distinct cor-

" Skelly v. School Dist. (1894), 103 Cal. 652, 37 Pac. 643.
" Mitchell v. Board of Education (1902), 137 Cal. 372, 70 Pac. 180.
16 Hughes v. Ewing (1892), 93 Cal. 414, 28 Pac. 1067; Bay View-
School Dist. v. Linscott (1893), 99 Cal. 25, 33 Pac. 781.
" Estate of Bulmer (1881), 59 Cal. 131.

18 Bay View School Dist. v. Linscott (1893), 99 Cal. 25, 33 Pac. 781.

19 Cal. Const., art. ix, § 5.

20 Cal. Pol. Code, § 1858.

21 Cal. Pol. Code, § 1617.

THE PUBLIC SCHOOL SYSTEM 199

poration. "The legislative declaration, 22 that every incorporated
city is a school district does not import into the organization of
the school district any of the provisions of the city charter, or
limit the powers and functions which, as a school district, it has
by virtue of the Political Code. The city is a corporation distinct
from that of the school district, even though both are designated
by the same name and embrace the same territory. The one
derives its authority directly from the legislature, through the
general law providing for the establishment of schools throughout
the state, while the authority of the other is found in the charter
under which it is organized." 23

There are several interesting cases involving the authority of
the legislature, or its agents, to change the boundaries of school
districts, throwing, perhaps, the schoolhouse and other buildings
which had belonged to one district into a new district. We shall
review them briefly.

1. The electors of Fresno City School voted to raise $6000
for building a schoolhouse, but the trustees did not notify
the county supervisors of the fact until September 23, 1890. On
September 6, 1890, the supervisors changed the boundaries of the
school district by excluding therefrom certain lands and trans-
ferring the same to other districts. On the first Monday in
October, 1890, the trustees of the Fresno City School District
levied a tax, for raising the $6000, on all the property that was
within the district at the time the original vote was taken. The
owners of the land excluded from the district by the action of
the supervisors on September 6 sought to restrain the tax collector
from collecting the tax so far as related to them. The court held, 24
that the power to change the boundaries of a district, as well as
to define them in the first instance, was of legislative origin, and
whether exercised immediately by the legislature or mediately by
the board of supervisors — the local legislature — was, whenever
exercised, a legislative act. In the exercise of its right, the legis-
lature might make such provision respecting the property and obli-
gations of the corporation of the school district as it might deem
equitable or proper, and its action would be conclusive. This would be
but carrying out the provisions of sections 1576 and 1577 of the
Political Code. And under sections 1577 and 1830, it must be under-

22 Cal. Pol. Code, § 1576.

=3 Kennedy v. Miller (1893), 97 Cal. 429, 32 Pac. 558. See also
Mitchell v. Board of Education (1902), 137 Cal. 372, 70 Pac. 180.
2 * Hughes v. Ewing (1892), 93 Cal. 414, 28 Pac. 1067.

200 CALIFORNIA LAW REVIEW

stood that when the boundaries of a school district are changed
either by forming a new corporation out of the territory of the
original corporation or by transferring a portion of the territory
to another corporation, in the absence of any provision of the law
on the subject, the old corporation will be entitled to all the
property and be solely liable for all the obligations, and the terri-
tory taken therefrom will not be entitled to any of the corporate
property nor be liable for any of the obligations of the old cor-
poration. 25 In order to render the territory which is transferred
from one school district to another liable for any obligations
incurred by that district, or to a contribution for any of its obli-
gations, it would be necessary to show that such liability had been
declared by the legislature. 28 The constitution, 27 while taking from
the legislature the power to impose taxes upon counties or other
public corporations, has not given such corporations directly the
power to impose taxes themselves, but has authorized the legisla-
ture to vest such power in them by general laws. Consequently,
the only power of a school district or other public corporation to
impose a tax is such as is granted to it by the legislature by
general laws.

The word "district" 28 is not the equivalent of "territory within
the district", but is a synonym for "corporation" 29 voting the tax,
and the tax to be levied by the supervisors is limited to the
property within this corporation. From this it resulted that the
"Fresno City School District" was the district that voted the tax,
and it was only upon the property within the "Fresno City School
District" that the tax could be levied. By a change in its bound-
aries the public corporation did not lose its identity or name, or
cease to be the same legal entity it was before. 30 On principle, a tax
on property which is outside the district to be benefited cannot
be upheld. 31

2. In 1865 there were in Santa Cruz County two adjacent
school districts, one known as the Santa Cruz School District,
and the other as the Bay View School District. From that time

25 Authorities: Town of Depere v. Town of Bellevue (1872), 31 Wis.
120, 11 Am. Rep. 602; Laramie County v. Albany County (1875), 92 U.
S. 307, 23 L. Ed. 552.

2 <*Cal. Pol. Code, § 1817.

27 Cal. Const., art. xi, § 12.

™ Cal. Pol. Code, § 1837.

2 <> Cal. Pol. Code, § 1575.

3° Bates v. Gregory (1891), 89 Cal. 387, 26 Pac. 891.

31 Authority: Richards v. Daggett (1808), 4 Mass. 534.

THE PUBLIC SCHOOL SYSTEM 201

on each maintained its autonomy, electing trustees at proper times,
and keeping school within its respective boundaries. In 1868 the
Bay View district purchased a lot for its schoolhouse and expended
$5000 in erecting the building. In every apportionment of money
by the county superintendent until December 1, 1891, its share was
regularly allotted. In 1866, the town of Santa Cruz was incor-
porated, and its exterior boundaries made to include a portion of
the Bay View district, embracing the lot on which the Bay View
trustees subsequently erected the schoolhouse and where the
school was maintained. In 1876 the City of Santa Cruz was incor-
porated with the same boundaries as the town formerly had.
After December 15, 1891, the county superintendent refused to
make an apportionment of school moneys to the Bay View
district.

It was held 32 that, under section 1576 of the Political Code,
there could be no doubt that the City of Santa Cruz constituted a
school district, nothing having been done to annex any territory to
the city for school purposes. 83 And after the incorporation of
the city the county board of supervisors ceased to have any power
over the schools within the city. 84 The only grounds upon which
the Bay View district could claim to have any rights were that
the purchase of the lot, the erection of the schoolhouse and the
maintenance of the school by the Bay View district, the appor-
tionment of moneys by the county superintendent, and the acqui-
escence by the City of Santa Cruz, constituted an estoppel. To
this contention it was held by the court that an act of the legis-
lature fixing the boundaries of one of the political subdivisions of
the state cannot be repealed by the officers of such subdivisions
even by acts of estoppel. And the principle, already mentioned,
was relied on, that the only schools which a district could main-
tain were those that were situated within its territorial boundaries.

3. In 1876 the Vernon School District bought certain land
for school purposes. In 1896 the city of Los Angeles, under the
provisions of the Annexation Act of 1889, 35 annexed certain terri-
tory which included that portion of Vernon School District
which the district had purchased in 1876. The annexation pro-
ceedings were attacked on the ground that the act of 1889 was

32 Bay View School Dist. v. Linscott (1893), 99 Cal. 25, 33 Pac. 781.

33 Cal. Pol. Code, § 1576.

34 Ibid.

35 1889 Stats. Cal. 358.

202 CALIFORNIA LAW REVIEW

unconstitutional for two reasons, (i) because it conferred upon
the electors of the municipality a special privilege not conferred
upon the electors of the territory annexed; and (2) if the effect
of the annexation was to make the board of education of the city
successors in office of the Vernon School District, such purpose
was not expressed in the title of the act.

It was held, 36 as to the first point, that the act was constitu-
tional, for while the initiative in the annexation proceedings per-
tained solely to the municipality, the residents of the outside terri-
tory sought to be annexed were protected by the provision, which
required the affirmative action of a majority of the voters thereof
to authorize the annexation. As to the second point, it was held
that the title of the act was broad enough to include a provision
that the "annexed territory shall be to all intents and purposes a
part of such municipal corporation, except only that no part of
such annexed territory shall ever be taxed to pay any portion of
any indebtedness or liability of such municipal corporation con-
tracted prior to or existing at the time of such annexation." It
resulted, therefore, that the annexation was regular, complete and
constitutional, and that part of the Vernon district, including
the property acquired for school purposes, was henceforth within
the municipality of Los Angeles, and the jurisdiction over it in
school matters was transferred from the Vernon trustees to the
Los Angeles board of education "

4. In the next case, 88 we find that prior to 1870 there was a
school district adjacent to the City of Stockton, known as North
School District. By the act of reincorporation of the City of
Stockton in 1870 a portion of the North district became a part of
the municipality. In 1897 a majority of the heads of the families
in the portion of the North district outside of the city limits
petitioned to be annexed to the city for school purposes only, and
in accordance therewith the county board of supervisors duly
adopted an order annexing, for school purposes only, all the
remainder of the North School district which had not been added
to the city of Stockton by the re-incorporation in 1870. The pro-
ceedings were all avowedly in accordance with section 1576 of the
Political Code. In October 1898, a resident of the portion of

36 Vernon School District v. Board of Education (1899), 125 Cal. 593,
58 Pac. 175.

« Cal. Pol. Code, § 1576.

38 Kramm v. Bogue (1899), 127 Cal. 122, 59 Pac. 394.

THE PUBLIC SCHOOL SYSTEM 203

the North district, which had been annexed in 1897, applied to
have his son admitted to the schools of Stockton. The petition
was refused on the ground that the petitioner and his son did not
reside within the limits of the city of Stockton. The main reliance
of the Stockton school authorities was that section 1576 did not in
terms apply to cities already incorporated. But the court held that
such a construction was too narrow, that the section in question was
to be liberally construed, 39 and that territory might be added, for
school purposes, to a city already incorporated, as well as to a new
municipal corporation. North School District had, consequently,
disappeared, and its territory had come under the jurisdiction of
the Stockton board of education, and petitioner and his son were
of course residents of the Stockton school district.

5. In the fifth case 40 which we mention, the Pass School
District had been for many years a school district of Los Angeles
County. In 1889 certain real property was deeded to it for school
purposes. In November, 1903, Hollywood City was incorporated,
and Hollywood City School District came into existence. The
property bought in 1889 ^H within the corporate limits of the
Hollywood City district. Adopting the language of the court:
"The question presented may be thus stated: What, under the
indicated circumstances, is the disposition made by the law of
the real property of such corporation owned and used for the
corporate purposes when, by a change in the boundaries, that
property falls within the territorial limits of a new corporation
organized for identical purposes? Or, wording it differently, did
the title, dominion, power, and control over the land in controversy
pass to the Hollywood City School District, or did they remain
where formerly they had been, with the Pass School District?"
It was held that this question had been conclusively answered by
previous decisions of the court. 41 "By the legal annexation of the
land in controversy to the city of Hollywood and the Hollywood
City School District, (which latter, by virtue of section 1576 of
the Political Code, sprang at the same time into existence), the
power of the Pass School District to use this property for school

39 Cal. Civ. Code, § 4.

*° Pass School Dist. v. Hollywood City School Dist. (1909), 156
Cal. 416, 105 Pac. 122.

« Los Angeles County v. Orange County (1893), 97 Cal. 329, 32
Pac. 316; Johnson v. San Diego (1895), 109 Cal. 468, 42 Pac. 249, 30 L. R.
A. 178; Vernon School District v. Board of Education (1899), 125 Cal.
593, 58 Pac. 175.

204 CALIFORNIA LAW REVIEW

purposes undoubtedly came to an end. For, by section 1617 of
the Political Code, the management and control of school property
within their district is vested in the trustees of the district. This
proposition, as we understand it, appellant does not dispute. But
it contends that title to this property still remained in the plaintiff
district, with the correlative rights of leasing or selling the same."
The court answered this contention in the following words: "The
legislative power being full and complete over the matter, as a part
of that power it may make provision for the division of the prop-
erty and the apportionment of the debts of the old corporation,
when a portion of its territory and public property are transferred
to the jurisdiction of another corporation. But in the absence
of such provision, the rule of the common law obtains, and that
rule leaves the property where it is found, and the debt upon
the original debtor." 42 The position taken by the court has abund-
ant sanction in decisions of the California Supreme Court, the
Supreme Court of the United States, and the courts of many other
jurisdictions. 43

To meet the argument, in this and the other cases which have
been reviewed above, that an injustice would be done to the
school district which had bought property and erected school-
houses only to have them taken away and given to another district,
the court said:

"The state is profoundly interested in the education of its
young, but has no deep concern over the personality of the
trustees who shall administer this trust, so long as the ad-
ministration is in the orderly form of law. But to relieve
against the possibility of injustice being worked by the opera-
tion of the rule which might, without recompense, take a
schoolhouse away from one district and assign it to another,

42 Johnson v. San Diego (1895), 109 Cal. 468 at p. 477, 42 Pac. 249,
30 L. R. A. 178; Board of School Directors v. Ashland (1894), 87 Wis.
533, 58 N. W. 377.

"3 Vernon School Dist. v. Board of Education (1899), 125 Cal. 593,
58 Pac. 175; Bay View School Dist. v. Linscott (1893), 99 Cal. 25,
33 Pac. 781; Laramie County v. Albany County (1875). 92 U. S. 307,
23 L. Ed. 552; Mount Pleasant v. Beckwith (1879), 100 U. S. 514, 25
L. Ed. 699; McGovern v. Fairchild (1891), 2 Wash. St. 479, 27 Pac. 173;
School Township of Allen v. School Town of Macy (1887), 109 Ind. 559,
10 N. E. 578; New Point, etc., v. School Town of New Point (1894),
138 Ind. 141, 37 N. E. 650; Prescott v. Town of Lennox (1898), 100 Tenn.
591, 47 S. W. 181; Bloomfield v. Glen Ridge (1896), 54 N. J. Eq. 276,
33 Atl. 925; Board of Education v. Board of Education (1887), 30 W.
Va. 424, 4 S. E. 640; 1 Dillon, Mun. Corp., 5th ed., § 35; City of Welling-
ton v. Wellington Township (1891), 46 Kan. 213, 26 Pac. 415.

THE PUBLIC SCHOOL SYSTEM 205

this state has made explicit provision whereby the use of the
school under the changed conditions may still be open to the
children within the territory to which it originally belonged.
This provision is found in section 1576 of the Political Code.
But the residents within the plaintiff district have not seen fit
to avail themselves of it. We are unable to perceive, there-
fore, that the rule adopted in this state either works injustice
to plaintiff or does violence to any of its constitutional rights."

"Dedications and bequests to school districts. — In two cases the
limited capacity of the school district was strongly contended for,
and the attempt was made to show that a school district could not
receive a dedication of property nor be the object of testamentary
disposition. In the former case, 44 which was an action to quiet
title, the defendant claimed that trustees of the district could not
accept a dedication of land without being authorized by a previous
vote of the district. This claim was made under an act of April
6, 1863, 45 which provided that the board of trustees should "have
power, when directed by vote of their district, to purchase, receive,
hold, and convey real or personal property for. school purposes."
It was held, however, that this section has no application to a
dedication of land. A dedication of land for a public or charitable
use is good even without a donee to take it; and the legislature as
well as chancery may appoint trustees who may maintain actions
in regard to the land. 46 Furthermore, it is not essential to a dedi-
cation that the legal title should pass from the owner; nor that
there should be any grantee of the use or easement in esse to take
the fee, such cases being exceptions to the general rule requiring a
grantee; nor is a deed or writing necessary to constitute a valid
dedication ; it may be by parol ; and no specific length of possession
is necessary to constitute a valid dedication. 47 On these grounds
the dedication of the land in question to the school district was
held valid and indefeasible.

In the second case, 48 the deceased had willed the residue of his
estate to "Laurel School District". It was found that Laurel
School District was a duly organized public school district under
the laws of the state, that as such it was a corporation, 49 for educa-

** Carpenteria School Dist. v. Heath (1880), 56 Cal. 478.

45 Hindi's Gen. Laws, art. 6692.

46 See Dill6n, Mun. Corp., 5th ed., § 1086.

"Authority: New Orleans v. U. S. (1836), 35 U. S. (10 Pet.) 662,
712, 9 L. Ed. 573.

48 Estate of Bulmer (1881), 59 Cal. 131.
"Cal. Pol. Code, §§ 1575 ff.

206 CALIFORNIA LAW REVIEW

tional purposes, and could, therefore, take by will. 50 Section 1275
of the Civil Code, which by implication gives this power to a school
district reads:

"A testamentary disposition may be made to any person
capable by law of taking the property so disposed of, except
that corporations other than counties, municipal corporations,
and corporations formed for scientific, literary, or solely edu-
cational or hospital purposes, cannot take under a will, unless
expressly authorized by .statute; subject, however, to the
provisions of section thirteen hundred and thirteen."
De facto school districts. — School districts may exist de facto
as well as de jure, and all the protection and presumptions that
prevail in the case of de facto officers will be recognized in the
case of de facto school districts. An interesting case, 51 involving
these principles, was decided by the Supreme Court in 1895.
Coronado Beach had for several years been the subject of dispute
whether it was within or without the territorial limits of the city
of San Diego. The district court had in 1877 held that it was not
part of the city, but judgment was not entered for eleven years.
The case was then, in 1888, appealed, and the supreme court
reversed the decision of the district court, and held that Coronado
Beach was within the limits of the city of San Diego. 52 In Jan-
uary 1887, while the peninsula was regarded, under the decision
of the district court, as outside the limits of the city, the county
board of supervisors took formal steps to organize Coronado
Beach into the "Coronado Beach School District of San Diego
county". During the next four years this district exer-
cised the powers and discharged the duties of a school
district organized under the laws of California. It had
its own board of trustees. It received and expended
state and county school moneys, employed teachers, and
maintained public schools. Forty thousand dollars in bonds were
voted, the bonds sold, and the proceeds expended in the purchase
of land and the erection of a schoolhouse. The plaintiff in the
case had paid taxes in 1888 and 1889, and sued to recover back
the taxes thus paid on the ground that there was no such school
district in legal existence as that of Coronado Beach.

The Supreme Court laid down the following principles: 1. A
school district is a corporation organized for educational pur-

5° Cal. Civ. Code, § 1275.

"Hamilton v. County of San Diego (1895), 108 Cal. 273, 41 Pac. 305.

52 San Diego v. Granniss (1888), 77 Cal. 511, 19 Pac. 875.

THE PUBLIC SCHOOL SYSTEM 207

poses, 63 and as the law stood in 1887, "each county, city, or incor-
porated town, unless subdivided by the legislative authority thereof,
forms a school district." 54 2. The district had a de facto exist-
ence. There was nothing lacking to give the color of legality to
its organization, or to render it impolitic to allow the collateral
impeachment of such existence. 3. The same rule which recog-
nizes officers de facto applies to corporations de facto. 4. The
order of the board of supervisors purporting to create the dis-
trict was the formal exercise of legislative power; 55 and there-
under everything having been done to constitute the district a
corporation colorably, if not legally, the law will refuse, in an
incidental and collateral way, to declare its proceedings void. 5.
Although a part of the district composed of the city of San
Diego, yet it was legally capable of segregation as an independent
district. 56 6. The board of supervisors of the county was a body
having power under the law to organize new school districts in the
county, and the order of the board of supervisors was within the
lines of the statute, 57 and valid on its face, and only invalid be-
cause of the fact, then unknown, that the territory in question
was within the limits of an incorporated city. 7. The order
purported to form and establish into a school district the territory
in question, with a designated name, in formal compliance with the
statute. 58 8. The district when organized exercised the powers
and discharged the duties of a legally organized school district.
9. This was done to the exclusion of other districts; that is, no
other district maintained a school or performed other office of
such a corporation within its confines. 10. There was acquies-
cence not merely by the San Diego (city) school district but by the
state and county in the assumption of such prerogatives by the
new district. 11. The plaintiff, and those he represents, recog-
nized the corporate existence of the district by paying taxes for its
use. 12. Taxpayers cannot recover back taxes paid by them to a
de facto school district for its bond and interest fund.

Another case, 59 presented the following facts : The Santa Bar-
bara City School District in 1891, organized a high school under

as Authority: Estate of Bulmer (1881), 59 Cal. 131.

"Cal. Pol. Code, § 1576.

so Hughes v. Ewing (1892), 93 Cal. 414, 28 Pac. 1067.

™ Cal. Pol. Code, § 1576.

"Cal. Pol. Code, §§ 1577-79.

=s Cal. Pol. Code, §§ 1575, 1577.

«• Hancock v. Board of Education (1903), 140 Cal. 554, 74 Pac. 44.

208 CALIFORNIA LAW REVIEW

the High School Act of 1891 and continuously maintained said
high school to January, 1900. The High School Act of 1891 was
declared unconstitutional in McCabe v. Carpenter, 102 Cal. 469, 36
Pac. 836. That act was repealed in 1893 and instead thereof a
new law was passed, 80 providing for the establishment and manage-
ment of high schools. A new municipal charter for Santa Barbara
was duly adopted and went into effect in January, 1900. 61 This
charter provided for a board of education, directing that it should
succeed to all the fights, property and obligations of the school
trustees of the former school district, and that it should have
power to establish and maintain high schools. In August, 1899,
the school trustees had made a contract with the plaintiff, engaging
him to act as principal of the high school from September 4, 1899,
for one school year of ten months. Upon coming into office in
January, 1900, the new board of education refused to allow plain-
tiff to act longer as principal of the high school according to the
contract with their predecessors. The theory of the plaintiff was
that the board of trustees of the city of Santa Barbara, upon their
coming into office under the charter of that city, adopted in 1899,
succeeded to all the rights and obligations, previously existing, of
the high school district, and were obliged to carry out the con-
tract which the plaintiff had made with that district. The princi-
pal theory of the defendant was that the so-called high school dis-
trict, which, by its board, was alleged to have made the contract,
had no existence, either in law or in fact, sufficient to enable it
to make the contract, and that therefore it could not be said that
there was a contract or obligation which the defendant could
have assumed, and hence there could be no recovery. These con-
tentions presented the question, whether the invalidity of the act of
1891, as decided in the case of McCabe v. Carpenter, 102 Cal.
469, 36 Pac. 836, under which the Santa Barbara high school was
organized, and the failure of the district to reorganize under the
subsequently amended law, rendered the alleged high school dis-
trict non-existent so as to be unable to make valid contracts.

It was held by the court, speaking through Mr. Justice Shaw,
that though the law under which a school district votes to establish,
and does organize a high school, is unconstitutional, and is after-
wards repealed by a law which authorizes it to organize a high
school, and provides that its board of school trustees shall con-
so Cal. Pol. Code, § 1670.
6i 1899 Stats. Cal. 486, § 172.

THE PUBLIC SCHOOL SYSTEM 209

stitute the high school board, and manage and control the high
school, and though there is no attempt to organize under the lat-
ter law, yet the acts of the trustees, as a high school board, in
managing the high school, after passage of the latter act, claimed
by them to be authorized, are under color of law, and cannot be
collaterally attacked, so that a board of education, which succeeds
to their rights and obligations, receiving money raised by taxes for
the high school, is liable for breach of its contract employing a
high school teacher.

It was further held that the existence of the legal character of
a school district, formed under the state law, embracing a city and
outlying territory, is not affected by the adoption of a charter for
the city putting the school department under the government of a
new board; and that section 1575 of the Political Code, providing
that the trustees of every school district may sue and be sued,
applies to city boards of education, as well as boards of country
school districts.

School taxes. — The constitution 82 provides: "The proceeds of
all lands . . . shall be and remain a perpetual fund, the interest
of which, together with all the rents of the unsold lands, and
such other means as the legislature may provide, shall be inviol-
ably appropriated to the support of common schools throughout
the state." An act of 1863 63 authorized Placer County to subscribe
to the capital stock of the Central Pacific Railroad Company and
provided that all money that should be paid to Placer County by
said company should be placed in the "Railroad Fund". The
question arose whether this act included properly and legally all
taxes paid by the railroad company, even taxes paid by the rail-
road under a tax levied by the supervisors for the support of the
common schools. It was held 84 that under the constitutional pro-
vision whenever the legislature raises a fund, by taxation or other-
wise, for the support of common schools, it cannot, by contempor-
aneous or subsequent legislation, divert the fund to a different
purpose, 65

The school district itself is the competent party to recover

62 Cal. Const. 1849, art. ix, § 2; Cal. Const. 1879, art. ix, § 4. This
section was copied from § 2 of art. x of the original Constitution of
Iowa..

63 1863 Stats. Cal. 145.

•* Crosby v. Lyon (1869), 37 Cal. 242.

65 Authority: District Township of Dubuque v. County Judge oi
Dubuque County (1862), 13 Iowa 2S0.

210 CALIFORNIA LAW REVIEW

delinquent taxes. For while the law provides 8 * that all taxes upon
township, road, school or local districts shall be collected in the
same manner as county taxes, this does not authorize a suit in the
name of the county.

"To say that such taxes [on railroad property imposed
upon townships, road, school or other local districts] shall be
collected in the same manner as county taxes are to be col-
lected, is not the equivalent of a permission to sue for them
in the name of the county, and, if it were, the county does
not, and cannot, collect such taxes by suit in its own name." 67
Where a school district is composed of the territory lying
within the municipal limits and also other territory adjoining out-
side the city it is competent for the city authorities, council or
board of trustees, to levy a tax for school purposes on all the prop-
erty of the district. This is held to be expressly provided for in
sections 1576 and 1670 of the Political Code, and these sections, in
giving this power, are held to be constitutional. 68

Where a special school tax has been assessed upon improvements
described as a dam situated on a tract of land within the school
district the dam being in fact outside of the district, but the lake
thereby formed being partly within the district on the tract described,
such tax, after voluntary payment thereof by the owner, cannot
be recovered back by him, on the alleged ground of a mistake of
fact on his part as to the location of the property assessed. 69 And
district school taxes, as well as state and county taxes, are included
in section 3817 of the Political Code, as amended in 189s; 70 which
authorizes redemption of real estate, sold to the state for delin-
quent taxes, by payment of the amount due thereon at the time of
the sale together with penalties based thereon. Therefore, one
cannot escape the payment of the penalties in redeeming land sold
for delinquent school taxes any more than for other taxes. 71

It has been the aim, always thwarted, of school superintendents
to devise some method whereby the necessity of going outside the
school authorities in the levying of school taxes might be avoided.
An act of 1863 in reference to the government of the common

«« Cal. Pol. Code, § 3671.

67 San Bernardino County v. S. P. R. R. Co. (1902), 137 Cal. 659, 70
Pac. 782.

68 Visalia Savings Bank v. Visalia (1908), 153 Cal. 206, 94 Pac. 888.

69 San Diego, etc. Co. v. La Presa School Dist. (1898), 122 Cal. 98,
54 Pac. 528.

70 1895 Stats. Cal. 333. c. 218.

71 Palomares Land Co. v. Los Angeles County (1905), 146 Cal. 530,
80 Pac. 931.

THE PUBLIC SCHOOL SYSTEM 211

schools in Sacramento, provided that the board of education should
advise the city board of trustees as to the amount of money neces-
sary to be raised by local taxation for the support of the schools
for, the ensuing year, and that the board of trustees should levy a
school tax "which will produce a sum that will make the amount
required by the board of education", provided such tax shall not
exceed 35 cents on the $100. The amount called for by the board
of education in 1892 required a tax of 35 cents. The board of
trustees levied a tax of 26 cents.

In an action by the board of education against the board of
trustees, to require them to levy a tax of 35 cents on the $100,
the Supreme Court held 72 that the fair and reasonable interpreta-
tion to be given to the statute is, that the board of education shall
give to the board of trustees an estimate in detail of the amount
of money which in its judgment will be needed for disbursement
in behalf of certain school purposes, and that the board of trustees,
upon consideration thereof, shall exercise its own judgment in
determining whether the purposes therein specified are suitable
objects of expenditure, and whether the amount of money named in
the statement is correctly estimated, and that thereupon it shall levy
such taxes as in its judgment, having regard to the interests of the
entire municipality as well as of its several parts, will be proper
and just. The rule under which the court so held was that in the
construction of statutes relating to the performance of a public
duty which does not affect any private rights or interests, but
concerns the public alone, the language of the statute, although
imperative in terms, must be regarded as directory rather than
mandatory.

The High School Act of March 20, 1891,™ the first of the acts
upon which the present system of high schools in California rests,
contained the following provision :

"An annual tax shall be levied by the authorities whose
duty it is to levy taxes in counties, cities, incorporated towns,
the amount of said tax being estimated by the County Super-
intendent of Schools, . . . and by him certified to the
proper authorities on or before the second Monday of Septem-
ber of each year. And it shall be the duty of such authori-
ties to levy such a rate as will produce the amount estimated
to be necessary for such purposes."

' 2 Board of Education v. Board of Trustees (1892), 96 Cal. 42, 30
Pac. 838.

73 1891 Stats. Cal. 182.

212 CALIFORNIA LAW REVIEW

This was a repetition of the attempt which had been made in
the Sacramento Act of 1863, an d which had been nullified by the
Supreme Court. In the case in which the question was anew
presented for decision, 7 * the court took a different line of argument
and held the act unconstitutional. The court argued as follows :

" . . . . since the power to levy a tax is purely legis-
lative, it would seem to follow, that the power cannot be vested
in any other authority of the local corporation than the body
in which is vested the legislative power of such municipal cor-
poration. At all events, it could not vest such power in an
executive officer of such corporation .... when the
estimate reaches the board of supervisors of the county which
the act, in a way, recognizes as the proper authority to levy
the tax, it has nothing to do but make a mathematical calcula-
tion, which consists in dividing the amount of the estimate by
the amount of the taxable property in the district, and to enter
the order. This is not the exercise of power. It is obedience
to a command. Where one is required to do a given act in a
mode prescribed, without reference to his judgment or discre-
tion, except as to the mode of complying, the act is purely
ministerial."

It was accordingly held that if the legislature cannot impose a
tax upon the property or inhabitants of a school district, it would
seem to follow that it cannot prescribe a procedure through which
such tax would inevitably be levied without leaving some discre-
tion in regard to it to the local authorities. That was what the
provision of the act of March 20, 1891, in question did, in the
opinion of the court, and was therefore in conflict with section 12
of article XI of the constitution. If the court had followed the
decision in volume 96 of the California Reports, it could have
upheld the statute and reached the same practical result.

In concluding this section of the present chapter, it may be
noted that the Supreme Court upheld the revision of the High
School Act as amended in 1895, 75 which provided that the high
school should furnish to the authorities whose duty it is to levy
taxes "an estimate of the amount of money required for conduct-
ing the school for the school year", and that said authorities should
levy a tax "sufficient in amount to maintain the high school". The
court held that this language cured the defects noted in McCabe v.
Carpenter, 102 Cal. 469, 36 Pac. 836, because it left discretion in

"McCabe v. Carpenter (1894), 102 Cal. 469, 36 Pac. 836.
'5 Cal. Pol. Code, § 1670.

THE PUBLIC SCHOOL SYSTEM 213

the appropriate taxing body to determine what amount would be
sufficient for the purpose. 78

It may be remarked that in one of these cases, 77 the court
labored too arduously to explain the meaning of the simple, com-
pendious expression, "the authorities whose duty it is to levy taxes
in said city, incorporated town, school district, or union high school
district". This phrase obviated the necessity of an enumeration
to fit each case and was not the proper occasion for the following
remark, in some connections suitable enough: "We have found
it difficult to harmonize all the different clauses relating to the
school system so as to give effect to the whole, and were we in-
clined to cavil, abundant cause might be found therefor in some
of our school legislation."

School bonds. — In an action involving the refusal of a county
auditor to sign and attest certain bonds, it was held that there be-
ing no specific requirement of the law declaring that bonds of a
school district shall be made payable in money of a particular form
or kind, a resolution of the trustees of the district, calling an elec-
tion to determine whether the bonds shall be issued, is sufficient,
when it provides for bonds payable in lawful money of the United
States, and supports a subsequent order of the board of supervisors
directing the issuance of the bonds and making them payable in
gold coin of the United States. And, likewise, it is competent for
the board of supervisors, after an election authorizing the issuance
of school bonds, to determine whether the interest thereon should
be paid annually or semi-annually, notwithstanding the resolution
of the board of trustees and the notice of the election were silent
on that subject. 78

Elections for school bonds must be held with scrupulous care,
and especially in substantial compliance with the statute. A vote
of the district is requisite for the issue of bonds. 79 And if there
is not an observance of the formalities prescribed in the calling or
conduct of the election, there is a fatal defect. Thus, in an elec-
tion for school bonds, the notice, either posted or published, calling
the election, variously described the place where the election would
be held, as "at the hall in the town of Caruthers", "at the public

™Chico High School Board v. Supervisors (1897), 118 Cal. 115, SO
Pac. 275; Board of Education v. Board of Trustees (1900), 129 Cal. 599,
62 Pac. 173.

"Chico High School Board v. Supervisors (1897), 118 Cal. 115, 50
Pac. 275.

™ County of Kings v. Rea (1913), 164 Cal. 508, 129 Pac. 772.

™ Cal. Pol. Code, § 1880.

214 CALIFORNIA LAW REVIEW

schoolhouse in the town of Caruthers", "at the schoolhouse in
Caruthers school district". The court said that it was unable to
say that the town hall and the public schoolhouse in the town of
Caruthers were the same place, or that the schoolhouse in Caruthers
school district and the public schoolhouse in the town of Caruthers
referred to the same building. It was accordingly held that there
was no requirement of the election law more important in its
observance than that the notice should correctly state where the
election was to be held, and, hence, where the notices were incon-
sistent, contradictory and misleading, the election was invalid. 80

In Oakland, San Francisco and Los Angeles, the question has
arisen whether the issuance of bonds for school purposes in a
school district embraced in whole or in part within the city limits is,
or may be, a municipal affair. In Oakland, 81 and in San Fran-
cisco, 82 it was held that the city might bond itself, issuing munici-
pal bonds, for the acquisition of land for school purposes and for
the building of schoolhouses. In the Los Angeles case, 83 in which
it was contended that the Oakland and San Francisco cases estab-
lished by implication that all matters within the corporate limits of
a city were "municipal affairs", it was held that this was in no
sense true, and that the school district of Los Angeles was not
debarred from issuing bonds of the school district by the fact that
it was included within the limits of the municipality. These cases
are mentioned here merely for the sake of completeness, having
been more fully reviewed in a previous chapter. 84

School moneys. — Two actions were brought, one against the
County of San Diego, 85 the other against the County of San Luis
Obispo, 86 for the recovery of taxes paid, in the former case to San
Diego City School District, in the latter to a Union High School
District. In both cases it was held that the action had been brought
against the wrong party defendant. The grounds of the decisions
were that the county as such has no interest in the funds of a

80 People v. Caruthers School Dist. (1894), 102 Cal. 184, 36 Pac. 396.

81 In re Wetmore (Wetmore v. Oakland) (1893), 99 Cal. 146, 33 Pac.
769.

82 Law v. San Francisco (1904), 144 Cal. 384, 77 Pac. 1014.

83 Los Angeles City School District v. Longden (1905), 148 Cal.
380, 83 Pac. 246.

8 *2 Cal. Law Rev. 469-471.

85 Pacific Mut. Life Ins. Co. v. San Diego County (1896), 112 Cal.
314 41 Pac. 423 44 Pac. 571.

' 86 Elberg v.' San Luis Obispo County (1896), 112 Cal. 316, 41 Pac.
475. 44 Pac. 572.

THE PUBLIC SCHOOL SYSTEM 215

school district, nor any control over the same in the county
treasury ; 87 and it was not the intent of section 3819 of the Political
Code to permit an action against a county to recover taxes paid to
and held by its officials, neither for the benefit of the county nor sub-
ject to its disposition, but for the use of, and to be disbursed by, a
distinct organization — a local district within the county. But, on the
other hand, it has been held that a school district has no proprie-
tary right to the money to its credit in the county treasury, and
hence cannot recover it from the county superintendent who has
erroneously transferred it to other school funds of the county. 88

William Carey Jones.
Berkeley, California.

«' Cal. Const., art xi, § 16; 1893 Stats. Cal. 272.

88 Gridley School Dist. v. Stout (1901), 134 Cal. 592, 66 Pac. 785.